Embedding isn’t copyright infringement, says Italian court

Website blocks lifted, but new EU copyright rules may make unauthorised embedding illegal.

Glyn Moody

JAY DIRECTO/AFP/GettyImages

The appeal court of Rome has overturned one of the 152 website blocks another court imposed last month, and ruled that embedding does not constitute a copyright infringement. The order against the Italian site Kisstube is annulled, but the other websites remain blocked.

Kisstube is a YouTube channel, which also exists as a standalone website that does not host any content itself, linking instead to YouTube. Both the channel and website arrange content by categories for the convenience of users.

The Italian court's decision was informed by an important ruling by the Court of Justice of the European Union (CJEU). In the BestWater case, the CJEU held that embedding or framing a video or image from another website is not copyright infringement if the latter is already accessible to the general public.

However, another CJEU judgment, reported recently by Ars, ruled that posting hyperlinks to pirated copies of material is only legal provided it is done without knowledge that they are unauthorised versions, and it is not carried out for financial gain.

On this crucial point, Kisstube's lawyer, Fulvio Sarzana, told Ars in an e-mail that "the judge has assessed that there was no evidence of illegality of the link" on Kisstube's site, because it had received no "notice and takedown request."

He pointed out that "YouTube has a notice system based on the US DMCA," but had not decided to act. Given that there was no indication that the hyperlinks were to illegal material, the court determined that the BestWater ruling applied, and Kisstube's site did not infringe on copyright.

Although it is welcome news that the Italian court has confirmed that embedding content is not copyright infringement, provided the original is not illegal, Sarzana warns that the matter is not settled, because new EU copyright rules are being brought in.

"At EU level there is in Bruxelles a very strong battle on linking," he wrote, being waged by "the largest Internet companies" and the powerful copyright industry lobby, which are all pressing "to consider [linking] still a violation of copyright."